[Congressional Record Volume 152, Number 25 (Thursday, March 2, 2006)]
[House]
[Pages H530-H539]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                NATIONAL UNIFORMITY FOR FOOD ACT OF 2005

  The SPEAKER pro tempore. Pursuant to House Resolution 702 and rule 
XVIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the consideration of the bill, H.R. 4167.

                              {time}  1250


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
(H.R. 4167) to amend the Federal Food, Drug, and Cosmetic Act to 
provide for uniform food safety warning notification requirements, and 
for other purposes, with Mr. Boozman in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered read the 
first time.
  The gentleman from Georgia (Mr. Deal) and the gentleman from 
California (Mr. Waxman) each will control 30 minutes.
  The Chair recognizes the gentleman from Georgia.
  Mr. DEAL of Georgia. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I rise today in support of H.R. 4167, the National 
Uniformity for Food Act. The manufacturing and distribution of the 
things we eat and drink is now a national industry. Coca-Cola, which is 
based in my home State in Atlanta, Georgia, for instance, is shipped to 
every corner of the country and throughout the world. Many believe that 
it is just common sense for these types of food manufacturers and 
distributors to have one labeling standard for the country, not 50 
standards for 50 States.
  More importantly, in order to make informed choices, consumers need 
consistent information. When a food warning is supported by science and 
consumers need to know it, the same warning should be applied to food 
everywhere. H.R. 4167 achieves that result.
  With a mobile society, inconsistent warning requirements are 
guaranteed to confuse. When it is a matter of health and safety, a 
little confusion can have catastrophic effects.
  A person in North Augusta, South Carolina, for example, can walk into 
a store and buy a product with no warning label. The same person could 
walk across the street to a store in Augusta, Georgia, and buy the same 
product but have a warning label attached. Does this make any sense? Of 
course not. It does not make any more sense to the shopper than it 
makes here in the House today.
  When people need to be warned that a food product may hurt them, 
everyone needs to be warned. Uniformity in food regulation and labeling 
is not without precedent. Meat and poultry are regulated under uniform 
standards. The Nutrition Labeling and Education Act of 1990 requires 
uniform nutrition labeling. If consistency in nutrition labeling is 
warranted, consumers should certainly have the benefit of consistency 
in warning labels of the food they eat.
  Some have rightfully argued that State-specific circumstances might 
necessitate a warning unique only to their State. This bill 
acknowledges that fact by inviting States to assert their unique 
problems and ensure that they will get a fair and fast response from 
the Food and Drug Administration.
  I would also like to dispel some of the misinformation that opponents 
of the bill have been perpetuating. In no way will this bill hinder the 
ability of States to respond to public emergencies. If a State feels 
there is an imminent public health threat that must be protected by 
requiring manufacturers and distributors to put a warning label on 
their product, they can do it immediately. All this bill requires is 
they tell the FDA of the threat. That is something they should be doing 
anyway and in most cases are already doing.
  Additionally, this bill does not affect a State's ability to issue 
its own notification to the public, to embargo a product, or to issue 
recalls when they deem that necessary.
  Finally, this is mostly a question about food safety, but there is a 
broad economic aspect to it too. Making consumers deal with 50 
different labeling requirements is not without cost. In effect, it 
divides America into 50 different markets where each of the products 
cost the consumer just a little more to buy.
  The men who wrote our Constitution decided that letting each State 
wage trade wars with its neighbors was a terrible idea, so they 
outlawed it by putting the Federal Government in charge of interstate 
commerce. It is hard to see the Framers changing their minds today so 
that one big market for American food can revert to 50 little markets 
where consumers pay more and get less.
  Consistent requirements will lead to consistent results for those who 
make our food, and consistent information will lead to consistently 
better and safer choice for our consumers.

[[Page H531]]

  I urge my colleagues to support H.R. 4167.
  Mr. Chairman, I reserve the balance of my time.
  Mr. WAXMAN. Mr. Chairman, I yield for the purpose of making a 
unanimous consent request to the gentleman from Texas (Mr. Gene Green).
  (Mr. GENE GREEN of Texas asked and was given permission to revise and 
extend his remarks.)
  Mr. GENE GREEN of Texas. Mr. Chairman, I rise in opposition to this 
legislation.
  This is the second Congress in which this bill has been approved by 
the House Energy and Commerce Committee without the benefit of a 
hearing.
  Committee approval of a bill with universal support is one thing. But 
this bill does not enjoy universal support and raises serious questions 
about States' rights and national security. Had we been given the 
benefit of a hearing, we could have learned more about the National 
Association of Attorneys General's opposition. We could have learned 
about the elements of the bill that led the Association of Food and 
Drug officials to conclude that this bill would ``handcuff the first 
responders who deal with food safety issues every day.''
  Legislation that causes this degree of concern should not be pushed 
through committee and brought to the floor without the benefit of a 
hearing.
  Mr. Chairman, this bill is an affront to States' rights. In each of 
the 50 States, State legislatures have passed food safety laws that 
offer residents additional food safety protections than federal law 
provides.
  This sweeping legislation would eliminate those State laws. It does 
so in two ways.
  First, the bill preempts all existing State-mandated food safety 
warnings.
  Second, it eliminates all State food safety laws that are not 
identical to federal law.
  In the name of food uniformity, this bill will actually disrupt State 
food safety enforcement activities and hinder States' ability to 
protect residents from unsafe foods.
  The bill also would prevent State and local governments from warning 
residents about the presence of contaminants in local food.
  In my State of Texas, this bill would nullify laws protecting Texans 
from unsafe food and color additives. It would have the same effect on 
nearly 200 laws in each of the 50 States. Jurisdiction for food safety 
activities has long resided with the States, which conduct 80 percent 
of all food safety inspections.
  This bill also has serious implications to national security.
  The National Association of State Departments of Agriculture--which 
opposes this bill--has highlighted the role that the current food 
safety system plays in national security, saying that it ``forms the 
first line of defense against the growing threat of a terrorist attack 
against our nation's food supply.''
  According to the State Agriculture Departments, the preemption 
provisions of this bill ``would leave a critical gap in the safety net 
that protects consumers.''
  I encourage my colleagues to protect consumers, stand up for States' 
rights, and ensure the security of our Nation.
  Oppose this misguided bill.
  Mr. WAXMAN. Mr. Chairman, I yield myself 4 minutes.
  Mr. Chairman, today the House takes up legislation that would 
overturn 200 State laws that protect our food supply. Some of them are 
in labeling and some actually deal with the substance of what can be in 
food in the State.
  A year ago, the House passed legislation to try to dictate private 
end-of-life decisions of Terry Schiavo and her family. This intrusion 
of the Federal Government into personal decisions was, I think, 
universally condemned, and yet today the House is once again trying to 
usurp powers that do not belong in Washington.
  Why are they doing it? Because some special interests want to 
overturn State laws that they never liked. The only difference is that 
it is the authority of State and local governments to protect against 
food-borne hazards that is now under assault.
  In California, for example, we have candies that come in from Mexico 
that have lead in them. So our legislature passed a law regulating lead 
in candy. It is a sensible idea. Lead can cause brain damage to 
children. Yet the authors of this bill that is before us today, without 
holding any hearings, want to preempt that law.
  Now, their argument is, well, we ought to have a Federal law that 
does the same thing. If we ought to have a Federal law to do the same 
thing, why has the Federal Government not done that? The Federal 
Government has not been involved in these areas. They have been in the 
area of State control.
  In Maine there is a law that requires consumers to be warned about 
the dangers of eating smoked alewives. This is not a problem in 
California, but apparently it is one in Maine. Yet again it would be 
preempted.
  I could go on and on. Wisconsin knows a lot about cheese. It has 
special labeling requirements for cheese. Florida has special labeling 
requirements for citrus. Mississippi and Louisiana have special rules 
for differentiating farm-bred from wild catfish, and Alaska has similar 
rules for salmon. Ten coastal States have special laws protecting their 
residents from contaminated shell fish, and all 50 States have laws 
ensuring the safety of milk. And all of them would be preempted.
  The arrogance of the House of Representatives appears to know no 
bounds. The attitude seems to be that all knowledge resides in 
Washington and all power should as well.
  This is dangerous legislation. I know the proponents are going to say 
to you, well, they can appeal to the Food and Drug Administration to 
allow them at the State level to continue with their laws. Can you 
imagine that? The States, the sovereign States of this country, have to 
go hat in hand to a Federal bureaucracy to allow them to continue laws 
that their people accepted, passed under their rules, the State 
legislature and the Governors, to protect their population?
  The FDA cannot protect the food supply all by itself. The agency is 
underfunded and overworked, and it is failing even at the core mission 
of protecting consumers from dangerous drugs.
  You do not have to take my word for it. Just yesterday, 37 State 
Attorneys General, Republicans and Democrats, sent a letter to Congress 
opposing this radical legislation. They stated: ``We write to urge you 
to oppose the National Uniformity For Food Act which undercuts States' 
rights and consumer protection.'' And they go on to say: ``State and 
local governments are often the first line of defense when problems 
emerge. Prohibiting State and local leadership and action in this area 
is a serious mistake.''

                              {time}  1300

  We have also had opposition from the National Association of the 
State Departments of Agriculture and the Association of the Food and 
Drug Officials. These food safety experts know that passage of this 
legislation would create havoc and endanger families.
  For years, I have heard my Republicans say, let us allow the States 
to do what they need to do to protect their people. I agree with them. 
Do not bring everything to Washington.
  Madam Chairman, I reserve the balance of my time.
  Mr. DEAL of Georgia. Madam Chairman, I yield 3 minutes to the 
gentleman from Michigan (Mr. Rogers) who is the sponsor of this 
legislation.
  Mr. ROGERS of Michigan. Madam Chairman, I thank the chairman and I 
want to thank our 59 Democrat cosponsors. I want to thank the gentleman 
from New York (Mr. Towns) and the chairmen, Chairman Barton and 
Chairman Deal, for the work that they have done on this very important 
piece of legislation.
  I will say today that you will see great political theater, and I 
have the greatest respect for the gentleman from California (Mr. 
Waxman) and normally the great substantive debate that is put forth, 
but what we are going to see today are a lot of half-truths, or no 
truths at all or not even getting close to what this bill really does.
  If you truly care about the health of the pregnant woman who is 
driving from Michigan to Florida to Illinois to meet family members all 
through that journey, then when she goes to that store to pick out some 
food, the label for her safety and the safety of her child ought to be 
the same. It should not be any different, the science that says that 
Illinois ought to label a safety provision in food; I cannot think of 
anything more important than the safety of our food ought to be the 
same.
  Because you know what? Science in California or science in Alaska or 
science in Florida is no different. The periodic tables are the same in 
Michigan as they are in Florida, as they are in Maine, as they are in 
New York. If it rises to that level where somebody with good science 
and scientists who

[[Page H532]]

care passionately about the safety of food and what we put in our 
bodies, to say we better tell people about this safety hazard, if it is 
good enough for one State's children, it is good enough for 50 States' 
children.
  Matter of fact, one of the examples that my good friend mentioned 
about the Florida citrus example is not preemptive because it has 
nothing to do with food safety. You are going to hear this again and 
again and again today, that we are somehow doing something awful and 
not letting them protect their citizens. That simply is not true.
  Matter of fact, if they have a standard based on good science that 
says, hey, we think that this food ought to have this warning label, 
then come to the FDA, show us the science, so we can share it with the 
rest of the country. Is that not the right thing to do? Do you not want 
to protect the children of all our 50 States? Absolutely you do.
  So I will say to you, let us subside with the political theater, the 
half-truths, the scare tactics and say we are going to embrace what we 
know is the right thing to do, a single standard. It is very much a 
common-sense issue. You are not going to find any family in America who 
thinks we ought to have 50 States and 50 different organizations trying 
to determine what is safe in our food and what is not.
  The same way we do with nutritional labeling, we went through and 
said the Federal Government better set some standards if we are going 
to have a consistency in all 50 States. It was widely supported, as 
this bill is bipartisanly supported.
  We said, hey, we better set an organic standard so we can tell all of 
America that we have got one standard that rises to the ability to 
label it as organic. Today, we are saying food safety rises to that 
same level. Every American, every mother, understands it. I am sure my 
colleagues on the other side will as well.
  Mr. WAXMAN. Madam Chairman, I yield myself such time as I may 
consume.
  If the Federal Government wanted one uniform standard and wanted to 
preempt the States from different standards, they could do it. They 
could do it, but what this bill would do is to preempt the States from 
even going forward on their own initiative to look at problems and have 
a standard or label in their State.
  The problem has never been demonstrated that there is an issue where 
there are too many State differences. The problem is that the Federal 
Government has not been involved in this area. So if we can get the 
States out of it and the Federal Government out of it, then processors 
can just sell their food and not worry about having to meet any 
standard anywhere.
  In California, we have a law that says you must designate if some 
harmful substance is in food. The consequence of that warning label 
means that the food producers make sure they do not have to put a 
warning label on because they get rid of any toxic substance that might 
be in their product. That is a good result of that requirement. It 
would be preempted by this law.
  Madam Chairman, I yield 3 minutes to the gentlewoman from California 
(Ms. Eshoo), my colleague and a very important member of the Energy and 
Commerce Committee.
  Ms. ESHOO. Madam Chairman, I thank the gentleman from California (Mr. 
Waxman), my distinguished colleague, for not only his eloquence on this 
bill but all the work that he has done on public health issues and 
health in general for the people of our country.
  I rise to oppose this bill, and I do because I believe it is an 
assault on public health and consumer protection. It is no wonder there 
has never been a hearing on this bill in the last 8 years.
  So this is not about theater. This is not, as the gentleman who 
introduced the bill said a few moments ago, about theater and 
deception. This is a very, very serious debate, and it is a debate that 
should have been taking place in a public hearing, in a hearing of our 
committee; and it has not. I think that that in and of itself is an 
assault on the American people. It is disrespectful.
  The bill will preempt any State or local food safety law that is not 
identical to a Federal law, and we do not have those Federal laws. So 
it will absolutely leave a void. Is the majority saying here that they 
are set to put into place, if this bill passes, God forbid, that they 
are going to place on the Federal books, 200 Federal laws in a 
nanosecond? I do not think so.
  Under this bill, the FDA will have to approve any food safety law 
that is at variance with Federal policy, and according to the CBO, the 
bill will preempt an estimated 200 State and local laws dealing with 
food safety. Absolutely, preempt them, right away, 200 State and local 
laws.
  It is going to cost the FDA $100 million over the next 5 years to 
process petitions from States seeking to retain these laws. There is 
simply no credible public health justification for the extraordinary 
steps that this bill takes.
  The attorney general of California has weighed in against the bill. I 
insert this memorandum to the California delegation as part of the 
Record at this point.

                               MEMORANDUM

                                                February 10, 2006.
     To: Honorable Members of the California Congressional 
         Delegation
     From: California Attorney General, Bill Lockyer
     Re Opposition to H.R. 4167, the National Uniformity for Foods 
         Act of 2005.
       H.R. 4167, the National Uniformity for Foods Act of 2005, 
     endangers important public health protections California law 
     provides its citizens. As the measure moves toward a possible 
     vote on the floor of the House of Representatives, I wanted 
     to make sure members of the California delegation fully 
     understand this threat, and urge you to oppose the bill. 
     Perhaps the proponents did not make clear the extent to which 
     H.R. 4167 would deprive Californians of the particular 
     benefits of Proposition 65. This landmark law was passed by 
     63 percent of the voters, and it has reduced Californian's 
     exposure to toxic chemicals in food.
       1. Scope of the Bill
       The dramatic sweep of this bill may not have been made 
     apparent:
       It would forbid any state from requiring any form of health 
     disclosure for a food, even where the FDA has no requirement 
     in place for a given food, and is not even considering a 
     requirement. This prohibition would even bar warnings posted 
     in stores within a single state, and which therefore have no 
     effect on interstate commerce, other states or a 
     manufacturer's nationwide product label. (Proposed 2(b)(2).)
       It apparently would bar states from limiting toxic 
     chemicals in a food simply because the FDA has a general rule 
     barring foods that are ``injurious to health,'' even where 
     the FDA has not set any exposure standard for specific toxic 
     chemical states may want to regulate. (Proposed 2(a)(3).)
       It would remove the incentive that currently exists for 
     food companies to reduce toxic chemicals in food products to 
     below the level that requires a warning under Proposition 65.
       2. Examples of Benefits of State Regulation
       There are many examples of how Proposition 65 has 
     benefitted Californians. An excellent case in point is the 
     recent effort by my office, the Legislature and Governor 
     Schwarzenegger to address the issue of lead in imported 
     Mexican candies. These candies are extremely popular with 
     millions of Californians, especially our large Latino 
     population. But they have garnered little attention from 
     federal regulators in Washington, D.C. For years, FDA has set 
     an allowable lead level in these candies of 0.5 parts per 
     million. That standard, uniformly recognized by public health 
     officials as too lax, allows approximately 20 times more lead 
     in a piece of candy than Proposition 65 permits. Lead damages 
     the developing fetus, and impairs nervous system development 
     ill young children. A 2003 article in the New England Journal 
     of Medicine concluded that levels of lead previously 
     considered safe, actually caused a significant reduction of 
     children's IQ. Thus, what may in the past have been 
     considered a ``trace amount'' posing no real risk now is 
     known to damage health.
       Despite numerous press stories showing these candies' 
     adverse health effects on children in the local Latino 
     population, FDA took only limited action to enforce its own 
     alarmingly lax standard. As a result, in June 2004, my office 
     filed an action under Proposition 65 which will force Mexican 
     style candy manufacturers to reduce to safe levels the lead 
     in their candies. In addition, last year the Legislature 
     passed and the Governor signed Assembly Bi11 121, which 
     prohibits the sale of adulterated candy containing lead, 
     imposes fines for the sale of such candy and directs the 
     state Office of Environmental Health Hazard Assessment to set 
     a regulatory level allowing only ``naturally occurring'' lead 
     to be present in candy.
       H.R. 4167 would preempt Assembly Bill 121, simply because 
     FDA has a more lax, and largely unenforced, lead standard. 
     Additionally, H.R. 4167 would preempt Proposition 65's 
     warning requirement because it is a non-uniform disclosure.
       The bill would preempt another important use of Proposition 
     65--my vigorous efforts to assure that parents and women of 
     childbearing age are aware of the risks to unborn babies and 
     their small children from consuming too much fish with high 
     levels of

[[Page H533]]

     mercury. This effort is largely consistent with the FDA's own 
     policies. The FDA website warns that women who are pregnant 
     or may become pregnant should not consume certain types of 
     fish (such as swordfish and shark), and should 
     limit consumption of all types of fish, because of their 
     mercury content. California has given life to this 
     requirement by requiring that similar information be 
     posted in grocery stores that sell fresh fish and 
     restaurants that serve fish. At least six other states 
     have instituted similar public disclosure requirements 
     concerning mercury in fish. We recently completed the 
     evidence phase of a trial concerning warnings for canned 
     tuna. We believe such warnings can be provided in a manner 
     that will not conflict with FDA's advice, but will ensure 
     the advice is seen by more consumers of fish than FDA's 
     website. H.R. 4167 would preempt this disclosure 
     requirement.
       In addition, even well established and successful uses of 
     Proposition 65 could no longer be enforced, unless approved 
     by the FDA. For example:
       Lead in ceramic tableware: Based on a 1991 action by then 
     Attorney General Dan Lungren, industry agreed to 
     substantially reduce lead that leaches from ceramic tableware 
     into food and beverages. Manufacturers took that step because 
     of the marketplace incentive created by the duty to post 
     conspicuous point-of-sale warnings. While warnings initially 
     were common, most companies have reduced lead levels to 
     substantially below FDA requirements.
       Lead in calcium supplements: In June of 1997, California 
     reached agreement with makers of calcium supplements to 
     reduce levels of lead contamination in their products below 
     the level at which a warning would be required under 
     Proposition 65. Because of the importance of encouraging 
     women to increase their intake of calcium, this agreement was 
     negotiated without ever providing a consumer warning. 
     Meanwhile, FDA issued advisories concerning some sources of 
     calcium as early as 1982, and requested additional data in 
     1994. But it never has taken regulatory action.
       Arsenic in Bottled Water: Arsenic in bottled water has been 
     reduced to less than 5 parts per billion under the settlement 
     of a Proposition 65 action reached in 2000. FDA, in contrast, 
     still applies a standard of 50 parts per billion.
       Leaded crystal: Based on science showing that substantial 
     quantities of lead leach from fully-leaded crystal (defined 
     as 24 percent lead) into beverages, California took action to 
     require visible warnings at the point of sale in California, 
     as early as September of 1991. Leaded crystal--as 
     distinguished from other types of glassware--now carries 
     prominent warnings in California stores. Since 1991, FDA 
     never has publicized its advisory addressing this hazard in a 
     manner likely to be seen or read by consumers.
       In other instances, quiet compliance with Proposition 65 
     has produced public health benefits without litigation. Lead 
     soldered cans leach substantial amounts of lead into foods 
     stored in the cans. As soon as Proposition 65 took effect in 
     early 1988, our investigations found that food processors 
     were switching to cans that do not use lead, before 
     enforcement action was even necessary. In 1993, years after 
     Proposition 65 took effect, FDA issued ``emergency'' action 
     level. Similarly, potassium bromate is a listed carcinogen 
     under Proposition 65. Informal surveys in 2002 of stores in 
     Ca1ifornia found no bread containing potassium bromate for 
     sale. And the 2002 surveys found stores in other states sold 
     bread containing potassium bromate. Meanwhile, FDA remains 
     engaged in a multi-year process to encourage bakers to stop 
     using this additive.
       I recognize many have expressed concern about certain 
     enforcement activities of Proposition 65 by private parties. 
     That is why my office and the California Legislature have 
     taken vigorous action to ensure that private lawsuits brought 
     under Proposition 65 are pursued only in the public interest. 
     In 1999, the Legislature amended the statute to require that 
     private plaintiffs report to the Attorney General concerning 
     their enforcement activities. In 2001, I sponsored additional 
     legislation that requires all persons who want to bring 
     private Proposition 65 cases seeking consumer warnings to 
     first provide my office with appropriate scientific 
     documentation. That statute also requires that all 
     settlements of those cases be reviewed by my office and 
     approved by courts in a public proceeding under specific 
     legal standards. These actions by the state have curbed 
     questionable lawsuits filed by private litigants, and reduced 
     the number of settlements that are not in the public 
     interest.
       I am aware that many in the food industry have expressed 
     great concern over the chemical acrylamide, its presence in 
     many foods, and the potential application of Proposition 65 
     to those foods. The FDA has been considering this issue since 
     2002, and currently has no schedule for when, or whether, it 
     will take any action concerning the matter. In the meantime, 
     a single serving of french fries contains 80 times the amount 
     of acrylamide EPA allows in drinking water. Accordingly, I 
     have filed suit under Proposition 65 to require warnings for 
     acrylamide in french fries and potato chips, so that people 
     in California can make their own choices about their exposure 
     to this chemical. This suit would not ban any products or 
     require that warnings be provided in any other state. It 
     would, however, provide Californians the health information 
     they demanded in passing Proposition 65.
       3. Petition Process
       While H.R. 4167 would allow states to petition FDA for 
     authority to impose additional requirements, it is 
     inappropriate to require a state to seek the federal 
     government's permission to protect the health of its 
     citizens. Moreover, our past experience suggests the FDA 
     would deny any such petition.
       Further, the specific provisions of the petition process 
     raise concerns. Initlal1y, states would have six months to 
     petition FDA for approval of existing requirements applicable 
     to specific foods, during which time those requirements would 
     remain in effect until disapproved by the FDA. (Proposed 
     Sec. 403B(b).) While the bill provides for judicial review of 
     FDA's decision, it does not establish the standard by which 
     any denial of a petition would be judged. The lack of a 
     review standard would leave FDA potentially limited 
     discretion to arbitrarily strike down state requirements. 
     (Proposed Sec. 403B(b)(3)(C)(ii)(I).)
       Any general requirement such as Proposition 65 itself--and 
     any new requirement, could be adopted only after approval by 
     FDA. The FDA could delay that process indefinitely through 
     extension of the ``public comment period.'' (Proposed New 
     Sec. 403B(c)(1), (3)(B).) Thus, it appears that any time a 
     state official sought to apply an existing law to a food 
     product where no specific requirement for that food had been 
     set, enforcement of the law would be barred until and unless 
     the FDA granted its permission.
       Indeed, H.R 4167's petitioning scheme brings to mind one of 
     the grievances against distant British authority recorded in 
     the Declaration of Independence. ``He has forbidden his 
     governors to pass laws of immediate and pressing importance, 
     unless suspended in their operation till his assent should be 
     obtained; and when so suspended, he has utterly neglected to 
     attend to them.'' (Declaration of Independence, 4th 
     paragraph.)
       4. Need for National Uniformity
       In a few instances, legitimate reasons exist for national 
     uniformity in food labeling and standards. These 
     circumstances, however, already are addressed under current 
     federal law, which. also prohibits states from adopting 
     requirements that conflict with properly adopted and 
     necessary federal labeling requirements.
       Existing section 403A of the Federal Food, Drug, and 
     Cosmetic Act expressly precludes state laws mandating label 
     requirements for a wide variety of matters on which the FDA 
     has acted and uniformity is necessary. This preemption covers 
     standards of identity, use of the term ``imitation,'' 
     identification of the weight of the product and its 
     manufacturer, the presence of food allergens, and whether the 
     product is pasteurized.
       Other federal regulatory statutes that govern nationwide 
     industries, such as the Federal Insecticide, Fungicide, and 
     Rodenticide Act (FIFRA), adopt a much more limited approach. 
     FIFRA, for example, preempts only state warning requirements 
     that would appear on the nationwide label of the product. It 
     also allows each state to adopt more restrictive requirements 
     for use of pesticides within that state.
       Even where Congress has not expressly preempted state law, 
     courts uniformly have held that state law must give way to 
     federal requirements where the two are in ``actual and 
     irreconcilable conflict.'' The California Supreme Court 
     applied that requirement in Dowhall v. SmithKlineBeecham 
     (2004) 32 Cal.4th 910.) This doctrine sufficiently ensures 
     state regulations do not interfere with properly adopted 
     federal requirements.
       In fact, FDA officials have demonstrated a disturbing 
     tendency to manufacture ``conflicts'' in their desire to 
     preclude states from enforcing their own laws to protect 
     public health. FDA officials arbitrarily declare 
     ``misbranded'' products for which additional warnings would 
     be given, without even consulting state authorities. For 
     example, last August, the FDA, at the behest of a Washington, 
     D.C. law firm, sent me a letter asserting that state warning 
     requirements concerning mercury in canned tuna conflicted 
     with federal law. The FDA sent this letter without any 
     advance notice to my office. Further, the letter was based on 
     inaccurate information provided the FDA by the industry law 
     firm, and was sent without awareness that we proposed only 
     that California states provide warnings completely consistent 
     with FDA's own published ``mercury in fish advisory.'' In 
     light of such incidents, it's arguable that if there is any 
     need for legislation, it is to amend federal law to protect 
     the states against arbitrary and informal action by federal 
     officials who take it upon themselves to declare California 
     law in ``conflict'' with federal law, without providing state 
     authorities advance notice or any opportunity to be heard.
       H.R. 4167 would greatly impede our ability to protect the 
     health of Californians, both under Proposition 65 and under 
     other laws that could be adopted by the voters or our 
     Legislature. I thank those of you who are opposing this 
     measure. For those of you still considering the bill, I 
     strongly urge you to oppose it and for those of you who have 
     agreed to co-sponsor the measure, I hope you will reconsider 
     your position in light of the important consumer protections 
     H.R. 4167 will impede.

  Madam Chairman, the State Departments of Agriculture, as well as 
State and food safety officials from all 50 States oppose the bill 
because they believe it hampers their ability to protect the public 
from hazards in the food supply, even potential bioterrorist attacks, 
an issue that really should be

[[Page H534]]

debated and discussed and would have been if we had ever had a hearing.
  These State and local officials are responsible for conducting 80 
percent of the food safety inspections in the country, and yet today we 
are diminishing their ability to carry out their important role.
  The National Association of State Departments of Agriculture 
representing every State in the Union has come out against the bill.
  The Association of Food and Drug Officials wrote that ``The bill will 
preempt States and local food safety and defense programs from 
performing their functions to protect citizens.''
  Equally disturbing, the bill will scale back State laws designed to 
protect pregnant women and children from potential hazards in foods. 
Why would we ever take such a step?
  For all of these reasons and many more, I rise in opposition to the 
bill. It is bad public policy and it should be rejected by the House.
  Mr. DEAL of Georgia. Madam Chairman, I yield 3\1/2\ minutes to the 
gentleman from Florida (Mr. Boyd) for purposes of a colloquy.
  Mr. BOYD. Madam Chairman, I want to thank the gentleman from Georgia 
for yielding time to me to enter in a colloquy so that we may clarify 
certain parts of this.
  I, and other Members, would like to be certain that we understand how 
this bill affects State food safety laws. It is my understanding that 
the bill contains a list of 10 provisions of Federal food safety laws 
and that State law dealing with the same subject as the Federal law is 
required to be identical to the Federal law. Is my understanding 
correct?
  Mr. DEAL of Georgia. Madam Chairman, will the gentleman yield?
  Mr. BOYD. I yield to the gentleman from Georgia.
  Mr. DEAL of Georgia. Madam Chairman, yes, it is.
  I would add that, under the bill, ``identical'' means that the 
language in the State law is substantially the same as that in the 
listed sections of Federal law and that any differences in language are 
not material. This is important to understand.
  Mr. BOYD. Madam Chairman, I thank the gentleman for his 
clarification.
  Am I correct in also understanding that virtually all of the State 
laws that relate to the sections of Federal law listed in the bill are 
identical to Federal law already?
  Mr. DEAL of Georgia. If the gentleman would further yield, yes.
  For example, Federal law contains what is referred to as the ``basic 
adulteration standard,'' which provides that a food is adulterated if 
it bears any added poisonous or deleterious substance which may render 
the food injurious to health. All States have a provision that is 
identical to this provision of Federal law.
  Mr. BOYD. Madam Chairman, I thank the gentleman.
  Is the basic adulteration standard to which the gentleman has 
referred the standard that the Federal Government or States would rely 
on to deal with the presence of unsafe levels of contaminants in food? 
Would that provision permit a State to take action against a terrorist 
threat to food supply?
  Mr. DEAL of Georgia. The gentleman is correct on both of those 
points.
  Mr. BOYD. Madam Chairman, a lot of us are confused. There have been a 
lot of allegations coming from all directions. There are folks who 
oppose the bill, that have produced a list of 77 State laws that would 
purportedly be nullified under this bill.
  If the gentleman would, is that an accurate portrayal of the effects 
of this bill?
  Mr. DEAL of Georgia. Madam Chairman, if the gentleman would continue 
to yield, no, it is not.
  Careful analysis of that list shows that of the 77 State laws listed, 
55 would not be preempted. Let me give you two examples. First, 
included on the list is an Alabama law that sets nutritional standards 
for grits. This uniformity bill does not deal with nutritional 
standards or with grits, so the Alabama law is unaffected by the bill.
  Secondly, the list includes several State laws that require that fish 
be labeled as previously frozen, if that is the case. These laws are 
not affected by the uniformity provision because those State fish 
labeling requirements are not warnings.
  Of the 22 State laws that would be affected by the bill, 14 authorize 
States to adopt requirements for food and color additives that are 
different from Federal requirements. Although these laws would be 
preempted under the bill, the fact is that none of the 14 States that 
have these laws have any current requirement for food or color 
additives that are different from Federal requirements.
  So, in spite of all the wild assertions that the uniformity bill 
would nullify ``the bulk of the State food safety laws,'' as one 
opponent has put it, the fact is it would do nothing of the sort.
  Mr. BOYD. Madam Chairman, I thank the gentleman for that 
comprehensive and reassuring response. I agree there is a lot of 
confusion about the bill, and we do not clearly understand the effects 
on State law and authority. I am satisfied, however, that the bill 
properly preserves the ability of States to take action to protect 
consumers, while ensuring that food safety policies will be uniform and 
scientifically based, and I thank the gentleman for his time.
  Mr. DEAL of Georgia. Madam Chairman, I reserve the balance of my 
time.
  Mr. WAXMAN. Madam Chairman, I yield 6 minutes to the gentleman from 
Michigan (Mr. Stupak), an important Member of the Energy and Commerce 
Committee, who has been very active on FDA issues for a number of 
years.
  Mr. STUPAK. Madam Chairman, I thank the gentleman for yielding me the 
time.
  Madam Chairman, I rise today in strong opposition to H.R. 4167.
  I find it interesting that the majority party, which calls itself an 
advocate for States' rights, would actually put forth a bill that 
eviscerates State food safety laws. If passed, this bill would be a 
huge setback for consumer safety, public health and America's war on 
terror.
  Yesterday, I urged the Rules Committee to accept the Capps-Eshoo-
Waxman-Stupak consumer protection amendment which would permit States 
to maintain or enact food safety and food warning laws that require 
notifications regarding the risks of cancer, birth defects, 
reproductive health issues, and allergic reactions associated with 
sulfiting agents in bulk foods.

                              {time}  1315

  Our amendment would also permit States to maintain or enact food 
warning laws and notify parents about risks to children.
  I offered a second amendment which would allow States to maintain or 
enact food warning laws that require notification labeling regarding 
the treatment of foods with carbon monoxide. This bill, as written, 
would wipe out over 80 food safety laws and put our Nation's food 
safety standards squarely in the hands of the FDA.
  Michigan maintains and has laws that would be overturned with this 
bill regarding sulfiting agent warnings in bulk foods, smoked fish, the 
safety of food in restaurants, and laws governing the safety of milk. 
That is why 37 bipartisan State attorneys general oppose this bill.
  The bipartisan Association of Food and Drug Officials also have 
strong concerns. They stated and wrote to us, and I quote, ``This 
legislation undermines our Nation's whole biosurveillance system by 
preempting and invalidating many of the State and local food safety 
laws and regulations that provide the authority necessary for State and 
local agents to operate food safety and security programs. The pre-9/11 
concept embodied in this bill is very much out of line with the current 
threats that confront our food safety and security.''
  They also said that preemption and invalidation of State and local 
food safety and security activities will ``severely hamper the FDA's 
ability to detect and respond to acts of terrorism.'' They added, and I 
quote, ``Our current food safety and security system will be 
significantly disrupted and our inability to track suspected acts of 
intentional alteration of food will be exploited by those who seek to 
do harm to our Nation.''
  The danger of placing our Nation's food safety laws squarely in the 
hands of the FDA is demonstrated by my amendment on carbon monoxide.
  Madam Chair, I would like to direct your attention to these pictures. 
Which meat do you think is older, the red

[[Page H535]]

meat on the top or the brown meat on the bottom? It is a trick 
question. They are both the same age. Both have been sitting in a 
refrigerator side-by-side for 5 months.
  You can see the date of the labels, October 2005. The meat on the 
top, which is bright red and looks very, very healthy, has actually 
been treated with carbon monoxide, which causes the meat to look red 
and fresh long into the future. The meat on the bottom here, the brown, 
is actually brown and slimy. Like I said, the meat on the top is 5 
months old and looks as good as new, but what happens if you eat this? 
You will probably become very ill and possibly die from a foodborne 
pathogen like E. coli.
  The FDA, in all of its wisdom, or lack thereof, has no objection to 
allowing carbon monoxide meat to be packaged. Color is the most 
important factor people look at when they determine which type of meat 
to buy, according to numerous studies. This new practice is clearly 
consumer deception, yet the FDA decided it was okay. The FDA either did 
not look at the evidence or it just didn't find this whole matter 
troubling. I do not know which is worse.
  Right now, States may pass their own laws which label carbon monoxide 
meat so the consumers are well aware of what they are getting before 
they purchase it. All my amendment says is to allow the States to 
require carbon monoxide labeling if you are going to try to freshen up 
your meat. That is all we want to do, to allow a consumer to know what 
is going on. So when they go to the store and look at the meat, if they 
buy it based on a color which supposedly brings out the freshness, they 
will know it was done by tricking it with carbon monoxide, but that it 
is the same meat, kept for the same amount of time. All we are asking 
with our amendment is to allow us to prevent this.
  Do we really want this? We want to let the consumer know that the 
meat has been chemically treated before they purchase it. This bill 
would prevent me from doing that.
  Public health and food safety have primarily been the responsibility 
of the States. We should not now tie the hands of the States who want 
to protect the health of their citizens in the absence of FDA judgment, 
resources, expertise, or the will to do the right thing. I urge the 
majority party to stand up for the American people and allow our 
Democratic amendments and the Stupak carbon monoxide amendment on the 
floor next week for consideration.
  America can make the choice. With this bill, we will get tainted meat 
with carbon monoxide and jeopardize the health and safety of the 
American people.
  I urge my colleagues to vote ``no'' on this bill.
  Mr. WAXMAN. Madam Chairman, will the gentleman yield?
  Mr. STUPAK. I yield to the gentleman from California.
  Mr. WAXMAN. Madam Chairman, I think what the gentleman is 
illustrating is so important, because the sponsors of this bill said we 
need the Federal Government to protect the health of people all over 
the country. So let us have one uniform standard.
  Well, right now, the FDA could adopt that standard and stop the use 
of carbon monoxide as a food additive and as a preserver of meat, but 
they have not acted. So if a State wants to act, why should we tell 
them they cannot act when the FDA hasn't done anything at the Federal 
level? I think that is the point you are making.
  Let the States, if the Federal Government fails, sometimes because 
they have lobbyists up here who are more powerful, let the States at 
least be able to protect their own citizens to pass the laws they think 
are appropriate.
  Mr. STUPAK. Reclaiming my time, the gentleman is absolutely correct. 
What we are saying, basically, is let the consumer be aware of what 
they are buying. Let the buyer beware.
  I should know if the meat I am buying here, the hamburger, has been 
treated with carbon monoxide to make it look fresh and healthy, but it 
has been sitting for 5 months and really contains a deadly pathogen, 
with E. coli, that can kill me.
  Mr. DEAL of Georgia. Madam Chairman, I now yield 3 minutes to the 
gentleman from Virginia (Mr. Goodlatte), the chairman of the 
Agriculture Committee.
  Mr. GOODLATTE. Madam Chairman, I thank the gentleman from Georgia for 
yielding me this time and for his leadership on this issue, and I rise 
in support of H.R. 4167, the National Uniformity for Food Act of 2005. 
This bill takes a measured approach to national uniformity for food by 
providing a mechanism for a thorough, orderly review of States' 
existing regulations that may differ from those of the Federal 
Government.
  In the United States, the food production and distribution system is 
truly national. Products made in one State are distributed not only in 
all 50 States, but also the District of Columbia, the U.S. territories, 
and many countries around the globe. Consumers, as well as food 
manufacturers, have a right to expect that rational, scientifically 
based and consistent standards will apply. Citizens of all States and 
territories deserve and expect the same level of food safety 
protection. Likewise, all citizens in this country will benefit from 
uniform standards.
  The House Committee on Agriculture oversees a significant portion of 
America's food safety system. The Federal food safety functions over 
which this committee has jurisdiction have long employed uniform 
standards to protect public health, facilitate the marketing of 
agricultural commodities, and improve efficiency of the interstate 
trading of producers' goods. The adoption of uniform standards is 
common practice and, indeed, the general rule when it comes to the 
Federal food safety efforts.
  The USDA Food Safety and Inspection Service is responsible for the 
safety of domestic and imported meat in the United States. It enforces 
uniform standards through the authority granted by USDA, by the Federal 
Meat Inspection Act, the Poultry Products Inspection Act, the Ag 
Products Inspection Act, and other authorities.
  Likewise, previous amendments to the Food, Drug, and Cosmetic Act, 
which were included in the Food Quality Protection Act of 1996, 
provided that a State may not set tolerance levels for pesticide 
residues that differ from national levels unless the State petitions 
the Environmental Protection Agency for an exception based on a State-
specific situation.
  Moreover, uniformity is not limited to those areas of food safety. 
Congress has repeatedly recognized the importance of uniformity in food 
regulation in other sectors. For example, the FDA, as authorized by the 
Nutrition Labeling and Education Act, implements uniform standards for 
nutrition labeling, health claims, and standards of identity.
  With the world's safest food supply, every American benefits from 
this system of national food safety standards. H.R. 4167 builds on this 
record of success by extending this same approach to food safety 
standards used by USDA and other agencies to the FDA's food safety 
programs. This is an important step forward in ensuring consumer 
confidence in the food they buy for their families, and I urge all 
Members to support H.R. 4167.
  Mr. WAXMAN. Madam Chairman, I am now proud to yield 3 minutes to the 
gentlewoman from Connecticut (Ms. DeLauro), who is the chairman of the 
Appropriations subcommittee that deals with the Food, Drug, and 
Cosmetic Agency.
  Ms. DeLAURO. Madam Chairman, I thank the gentleman for yielding me 
this time.
  Madam Chairman, every time this body considers a bill on how we 
regulate the food of this country it is designed not to strengthen 
existing law, but to weaken it, and this despite the fact that we face 
many threats to our food supply: avian flu, BSE, and bioterrorism. 
Today, we debate the National Uniformity for Food Act. This bill would 
make our food safety laws uniform: uniformly weak, uniformly toothless.
  Right now, it is States, not the Federal Government, that conduct the 
body of our food safety work. State and local agencies do 80 percent of 
the food inspections in the United States. They are on the front lines. 
They test food products and they manage food emergencies. Yet under 
this bill, State laws requiring warnings and labels on foods would be 
superceded or eliminated.
  The nonpartisan Congressional Budget Office estimates that 200 State 
laws would be immediately affected by this

[[Page H536]]

bill's passage, requiring States to submit requests for waivers to the 
FDA. The cost to the FDA for reviewing these waivers would be $100 
million. Does this bill authorize another $100 million to FDA? Of 
course not. This, at a time when the administration's budget proposals 
cut Federal food safety funding by over $450 million.
  One of my colleagues talked about this being theater. This is not 
theater. Many of us have been asking for more funding for food 
inspections and food safety over the last several years, and the 
administration and the leadership in this House have refused to do it.
  This bill has other problems. States regulate shellfish, milk 
production, and other food products. In the absence of any Federal 
standards, those State protections will disappear. The bill undermines 
our ability to respond to bioterrorism and other food emergencies. It 
would require the notification of the Secretary of HHS before 
responding to a food emergency. They could only respond once they have 
received assurance that the Federal Government is not taking 
enforcement actions of their own. The State would then be required to 
apply for waiver, after the fact, to justify their actions. This is 
absurd.
  If this Republican Congress wanted to make our food safety laws 
uniform, it would create a single food agency that would regulate the 
safety of our food, as some of us have suggested over and over again. 
We have 12 different agencies and 35 statutes currently in place to 
regulate food safety at the Federal level. If you want to be serious 
about this issue of food safety, let us have one single agency whose 
responsibility it is to make sure our food supply is safe and ensure 
the public health of this Nation.
  We need to do a better job of coordinating our efforts to protect the 
public health, but we do not get there by weakening our laws; we get 
there by strengthening them. And that is something that this bill does 
not even begin to attempt to do.
  Mr. DEAL of Georgia. Madam Chairman, I now yield 2 minutes to the 
gentleman from Georgia (Mr. Bishop).
  Mr. BISHOP of Georgia. Madam Chairman, I thank the gentleman for 
yielding me this time, and I rise today in support of H.R. 4167, the 
National Uniformity for Food Act. If enacted, this important 
legislation would set much-needed national standards for food safety 
and put an end to the confusing and often contradictory standards that 
exist across many States.
  This is important, given that consumers have a right to expect the 
same scientifically based safety standards everywhere in the United 
States. By establishing a single national system based on 
comprehensive, science-based standards, consumers and businesses will 
be clear about what is safe, what is permissible, and what needs to be 
labeled. This is an opportunity to bolster consumer confidence.
  The legislation would ensure that the FDA incorporates the best 
safety and warning practices of States, and allows States to continue 
to carry out sanitation inspections and enforcement. It would also 
create a process by which States can petition the FDA to adopt their 
own regulations as the national standard or to seek an exemption from 
national uniformity. A State's requirements would remain in effect 
while the FDA considers the State's petition. And where no Federal 
requirement exists, States could proceed pursuant to their own 
standards.
  H.R. 4167 is good, commonsense legislation. It is greatly needed, and 
I urge my colleagues to support it.

                              {time}  1330

  Mr. WAXMAN. Madam Chairman, I yield myself such time as I may 
consume.
  I don't think consumer confidence is going to be bolstered when we 
pass a law that the State Attorneys General say would strip State 
governments of the ability to protect their residents through State 
laws and regulations relating to the safety of food and food packaging. 
Some of the more obvious State level warnings that almost certainly 
would be challenged include consumer warnings about mercury 
contamination of fish, arsenic in bottled water, lead in ceramic 
tableware, the alcohol content in candies, the content of fats and oils 
in foods, and postharvest pesticides applicable to fruits and 
vegetables. The States would not be allowed to do that.
  Now, the previous speaker said that we ought to have a Federal 
requirement. But he was mistaken when he said that if there were no 
Federal requirement States can pursue their own standards. He is wrong 
because the bill before us would stop the States from pursuing their 
own standards unless the Federal Government allowed them to do so. And 
I think that is an intrusion on States' rights, a usurpation of power 
by Washington and an ability for the industries involved to be able to 
make their claim to the Federal Government to stop States from doing 
exactly what they think is appropriate to protect their public and to 
bolster consumer confidence.
  I don't think that the confidence of the consumer should be bolstered 
when we have a bill on the floor that has been around for a number of 
years and no committee has ever held a hearing on it. We did not allow 
the scientists to come in and tell us whether it is a good idea or not. 
We didn't hear the problems from the industry that should justify this 
bill. We didn't hear the opponents and the arguments that they might 
make. Instead, in committee we had a mark-up where Members could debate 
what we were told by different groups, but not based on a hearing 
record. I think that the confidence of the American people in Congress 
should be very, very low; and if this bill passes the confidence of the 
American public about their food supply should be also in doubt.
  Madam Chairman, I reserve the balance of my time.
  Mr. DEAL of Georgia. Madam Chairman, I yield 2 minutes to the 
gentleman from Minnesota (Mr. Peterson).
  Mr. PETERSON of Minnesota. Madam Chairman, I rise today in strong 
support of H.R. 4167, the National Uniformity for Food Act. As ranking 
Democrat on the Agriculture Committee, I support this bill because it 
provides uniform food safety standards and warning requirements, and it 
creates a single national system for food and food products regulated 
by the FDA.
  Establishing uniform standards increases efficiency and safety as we 
have seen in practice today with the USDA and the Federal Meat 
Inspection Act, the Poultry Inspection Act, and other authorities that 
were referred to by the chairman in his remarks a short time ago.
  Consumers gain with this consistency and uniform regulations for 
packaged food all across the 50 States under this jurisdiction of the 
FDA. If a food product is safe in one State, it is safe in all States.
  With the world's safest food supply at the lowest cost to its 
consumers, every American benefits from this system of national food 
safety standards. H.R. 4167 builds on this record of success by 
extending the same approach to food safety standards used by USDA and 
other agencies; and, therefore, I believe this bill should be 
supported.
  I strongly encourage my colleagues to vote in favor of this bill and 
to oppose any amendments that weaken or attempt to gut the commonsense 
approach of this legislation.
  Mr. WAXMAN. Madam Chairman, I yield myself such time as I may 
consume.
  I just want to read a portion of a letter from Tommy Irvin who is 
from the Georgia Department of Agriculture. And he said, ``The bill is 
craftily written to disguise its true effects on our authority to 
protect consumers. Both vague and broad in scope, this legislation 
will, in reality, go far beyond the stated purpose of uniformity. The 
real effect of this legislation will be the deregulation of the United 
States Food Industry.''
  Madam Chairman and my colleagues, we have at the Federal level, the 
Department of Agriculture. The Department of Agriculture has a dual 
mission: to protect consumers from unsafe agriculture products, 
particularly meat and chicken. But they also have the obligation to 
bolster the agriculture industries in this country. And they always 
have this tension about who to respond to first.
  We also have the Food and Drug Agency, and they regulate food 
additives and the food supply that the USDA does not cover. Well, as 
Representative Rosa DeLauro mentioned,

[[Page H537]]

we ought to have one food agency, but we have never been able to do 
that because people fight over their turf.
  Well, while the Federal Government is fighting over its turf, this 
bill would take away the jurisdiction from the States to protect their 
own people, and that is why we never hear a bill labeled as the 
``usurpation of power in Washington to take away from the States the 
ability to protect consumers of food.'' They do not call it that. They 
call it the ``National Uniformity Bill for the Food Product,'' or 
something along those lines. They always have a very nice sounding 
label for legislation.
  Well, do not be fooled by the label that this bill has, because it 
misleads the consumer and the American public into thinking we are 
doing something to protect them, when I fear it is going to make them 
weaker.
  Madam Chairman, I yield 2 minutes to the gentleman from Oregon (Mr. 
Wu).
  Mr. WU. Madam Chairman, I thank the gentleman from California for 
yielding, especially under these circumstances where I am not 
completely decided about this legislation. I have a sincere inquiry for 
my friends on the other side of this debate, and I realize that there 
are Democrats and Republicans on both sides of this debate.
  Given my background in securities law, if one wants to sell 
securities across this country, there is one layer of regulation at the 
Securities and Exchange Commission, but you have to run the securities 
through the blue sky laws of every single State in the United States.
  Similarly, there is banking law at the Federal level; but if you want 
to do, say, furniture lending and consumer lending, you have to do 
compliance work under consumer protection laws for every State in the 
Union. I used to do this kind of legal work when I was in the private 
sector.
  I had not intended to participate in the debate today; but, quite 
frankly, I was eating. And as important as securities and insurance and 
other issues are, it seems to me that Americans truly care about the 
safety of what they are eating and the ability to know what it is that 
they are putting down the hatch. And I am truly curious about the folks 
on the other side of this debate.
  What is it that distinguishes the food industry so that it does not 
have to, say, like the securities industry, comply with both Federal 
and State law, or with furniture lending, comply with both Federal and 
State law? Because it seems to me that the food industry is pretty 
healthy in this country and making good money, and we do not need to 
give it, if you will, an artificial boost.
  I would be happy to yield to someone from the other side.
  Mr. DEAL of Georgia. I thank the gentleman for yielding. They would 
have to comply with both. But what this deals with is labeling. If 
there is a label that is necessary for your people in Oregon to protect 
their safety, then it ought to be necessary for the people of my State 
of Georgia, and it ought to be uniform in that regard, and that is what 
we are saying.
  Mr. WAXMAN. Madam Chairman, I yield myself such time as I may 
consume.
  And in response to the gentleman's point, which I think is an 
excellent one, industries in this country often have to meet State 
standards as well as Federal standards. I have always heard that if it 
ain't broke, why fix it. And I have never heard a reason why we need 
this bill. What are we fixing? What is the problem? I do not see what 
the problem is, except some people would like to overturn State laws. 
And if they have the case to do that, they ought to make it at the 
State level, or they ought to come to the Federal Government and say 
this particular law is too burdensome; we ought to have a Federal law 
in its place.
  But that is not what we are having proposed to us today. We are 
having proposed to us a bill that just would, in a blanket way, allow 
the preemption of all duly adopted laws at the State level.
  Madam Chairman, I reserve the balance of my time.
  Mr. DEAL of Georgia. Madam Chairman, I yield 2 minutes to the 
gentlewoman from Tennessee (Mrs. Blackburn).
  Mrs. BLACKBURN. Madam Chairman, the National Uniformity for Food Act 
would actually foster greater cooperation among the States and the 
Federal Government on an issue that I honestly believe is very 
important to every American family, and that is food safety. Consumers 
across the country deserve a single set of science-based food warning 
requirements, not the confusing patchwork that we have today.
  I am a supporter of States' rights, and our friends across the aisle 
have not stood up for States' rights many times in the past, and I 
really don't think they are doing so today. They are standing up for 
what they love most, which is lots of government regulations.
  The bill before us, the National Uniformity for Food Act, strikes an 
important balance between States' rights and Federal responsibility. 
The bill really enhances the model for a Federal-State regulatory 
cooperation that already occurs in many areas of food safety. The bill 
gives the FDA authority where it would have authority and should have 
authority, which is general and scientific oversight over packaged food 
safety.
  It leaves to the States the fundamental tasks that are best handled 
at that level, ensuring proper sanitation and making sure that the 
manufacturing plants, refrigeration facilities, and food transportation 
all meet or exceed minimum standards.
  I encourage my colleagues to vote in favor of the bill.
  Mr. WAXMAN. May I inquire of my colleague how many speakers he has 
remaining?
  Mr. DEAL of Georgia. I am prepared to close.
  Mr. WAXMAN. Madam Chairman, I yield myself such time as I may 
consume.
  I will close the debate on our side.
  Madam Chairman and my colleagues, let me just go through the kinds of 
laws we are talking about. There are 50 State laws regulating the 
safety of milk. They are not identical. And I don't know if there will 
be one uniform law for the safety of milk at the Federal level, and I 
am not sure that it would make sense to have it. There may be 
differences that are justified. But that debate could go on, and it 
could be resolved by itself. But meanwhile, we shouldn't jeopardize 50 
laws on the subject when there is no Federal law to take its place.
  There are 50 State laws regulating safety of food in restaurants. Why 
should the restaurants in a State be regulated by Washington if their 
State chooses to have a food safety disclosure or other food law?
  There are 10 State laws regulating the safety of shellfish. Why 
should those laws be eliminated?
  There is an Alabama law regulating infested, moldy, or decayed pecans 
and other nuts. That may be a problem that Alabama has. Why shouldn't 
they be able to act on it, and why should we have to have that same law 
elsewhere or have no law anywhere on the subject?
  California law requiring consumers to be notified when food contains 
contaminants that cause cancer or birth defects, a California law 
limiting the amount of lead in candy, a Florida law regulating labeling 
of citrus fruit and citrus products, a Maine law requiring disclosure 
of the risk of eating smoked alewives, whatever that may be. A Maryland 
law, prohibiting the sale of frozen food that has been previously 
thawed. A Minnesota law requiring labeling of the types of wild rice. A 
Mississippi law requiring the labeling of farm-raised catfish. A 
Virginia law prohibiting the removal of sell-by date labels, a 
Wisconsin law requiring a label showing the age and type of cheese made 
in Wisconsin.
  I don't know whether those are all good laws or not, but the 
legislatures probably had hearings, and they got the input from people 
who are supporting it, and opposing it. And they adopted it and their 
Governors signed the laws.
  We are now about to overturn those State laws with a bill that had no 
hearing here in the Congress of the United States, and will turn it 
over to the FDA, a Federal bureaucracy, to decide whether those States 
may have those laws in their States still in effect. I think it is 
wrong. I do not see the problem it is solving. I think that this is

[[Page H538]]

legislation that has been poorly thought out. I hope we get a chance to 
offer amendments to the bill next week when we start considering it. 
Especially since it has never had a day of hearings, we ought to have 
an open rule. There are a limited number of issues to debate. We ought 
to at least be able to debate them and have votes on those issues so 
that Members can make a determined judgment as to whether this bill 
ought to pass the House of Representatives.
  I urge a ``no'' vote on the bill.
  Madam Chairman, I yield back the balance of my time.

                              {time}  1345

  Mr. DEAL of Georgia. Madam Chairman, I yield myself such time as I 
may consume.
  First of all, this has been a good debate, and I appreciate the 
interest and concern.
  And to my good friend, Mr. Waxman, who has handled it on the other 
side, I am glad he has now become converted to being a States' righter. 
Back in 1990 when he was the author of the Nutrition Labeling and 
Education Act of 1990, we heard exactly the opposite arguments. I was 
not here, but I am told those were the opposite arguments because as 
far as nutrition labeling, it does require uniformity across the 
country.
  Now, if labeling on nutrition requires consistency, why should not 
there be consistency in warning labels of the foods that people eat?
  Mr. WAXMAN. Madam Chairman, will the gentleman yield?
  Mr. DEAL of Georgia. I yield to the gentleman from California.
  Mr. WAXMAN. I do recall and I can explain the situation.
  Mr. DEAL of Georgia. Does it require uniformity?
  Mr. WAXMAN. It does because there was no nutritional labeling at the 
State level. It had been done by the industry voluntarily, and they had 
different kinds of labels, and it was not in a way that we could 
compare the calorie content, the carbohydrate content, the fat content. 
So we decided that since this was all under Federal jurisdiction 
anyway, we ought to standardize the labeling.
  It was not an issue of usurping the power from the States because the 
States look to the FDA to make that decision.
  Mr. DEAL of Georgia. You would not advocate repealing that law and 
giving it back to the States, I would assume?
  Mr. WAXMAN. No, of course.
  Mr. DEAL of Georgia. All right. Thank you.
  Mr. WAXMAN. You would not, however, want the Federal Government to 
legislate in every area that any State thinks ought to be done in their 
State?
  Mr. DEAL of Georgia. No.
  Reclaiming my time, let me give the Members of this body examples of 
some of the things that are excluded from it.
  The gentleman mentioned shellfish. Shellfish are specifically 
excluded from the provisions of this act. Some of the ones that I think 
most of us think of as the kinds of labels that may have peculiar 
application to locales that may not have application nationwide and 
that are therefore not included or prohibited from being placed on 
products are some of the following: open date labeling, grade labeling, 
State inspection stamps, religious dietary labeling, organic or natural 
designations, returnable bottle labeling, unit price labeling, and 
statement of geographical origin. Those all still continue to be 
allowed; they are not preempted by this legislation.
  I believe we have heard from a wide variety of people who represent 
points of view from their committee assignments on the Democrat side as 
well as the Republican side. The gentleman quoted my Democrat 
commissioner of agriculture from the State of Georgia. I called on my 
Democrat Member from the State of Georgia, who has served on the 
Agriculture Committee here in the House of Representatives, who said 
exactly the opposite of what our State agriculture commissioner says.
  Now, I think that the overall conclusion that we should reach is that 
this is a good piece of legislation. It is time that we recognize that 
there is a necessity for uniformity in labeling of food products, and 
this legislation moves us in that direction. I would urge the adoption 
of the bill when it is considered next week.
  Madam Chairman. I ask that this exchange of correspondence be 
included in the debate on H.R. 4167.
                                    Congress of the United States,


                                   Committee on the Judiciary,

                                Washington, DC, February 28, 2006.
     Hon. Joe Barton,
     Chairman, Committee on Energy and Commerce, House of 
         Representatives, Washington, DC.
       Dear Chairman Barton: In recognition of the desire to 
     expedite consideration of H.R. 4167, the ``National 
     Uniformity for Food Act of 2005,'' the Committee on the 
     Judiciary hereby waives consideration of the bill. There are 
     several provisions contained in H.R. 4167 that implicate the 
     rule X jurisdiction of the Committee on the Judiciary. 
     Specifically, the legislation contains a number of judicial 
     review provisions.
       The Committee takes this action with the understanding that 
     by foregoing consideration of H.R. 4167, the Committee on the 
     Judiciary does not waive any jurisdiction over subject matter 
     contained in this or similar legislation. The Committee also 
     reserves the right to seek appointment to any House-Senate 
     conference on this legislation and requests your support if 
     such a request is made. Finally, I would appreciate your 
     including this letter in your Committee's report for H.R. 
     4167 and in the Congressional Record during consideration of 
     H.R. 4167 on the House floor. Thank you for your attention to 
     these matters.
           Sincerely,
                                      F. James Sensenbrenner, Jr.,
     Chairman.
                                  ____



                             Committee on Energy and Commerce,

                                Washington, DC, February 28, 2006.
     Hon. F. James Sensenbrenner, Jr.,
     Chairman, Committee on the Judiciary, House of 
         Representatives, Washington, DC.
       Dear Chairman Sensenbrenner: Thank you for your letter 
     concerning H.R. 4167, the National Uniformity for Food Act of 
     2005, which the Committee on Energy and Commerce reported on 
     December 15, 2005.
       I appreciate your willingness not to seek a referral on 
     H.R. 4167. I agree that your decision to forego action on the 
     bill will not prejudice the Committee on the Judiciary with 
     respect to its jurisdictional prerogatives on this or future 
     legislation. Further, I recognize your right to request 
     conferees on those provisions within the Committee on the 
     Judiciary's jurisdiction should they be the subject of a 
     House-Senate conference on this or similar legislation.
       I will include our exchange of letters in the Committee's 
     report on H.R. 4167, and in the Congressional Record during 
     consideration of the bill on the House floor.
           Sincerely,
                                                       Joe Barton,
                                                         Chairman.

  Mr. MOORE of Kansas. Madam Chairman, I rise today in support of H.R. 
4167, the National Uniformity for Food Act.
  Food safety labeling standards currently vary from state to state, 
which has created a patchwork of different and inconsistent 
requirements. H.R. 4167 would amend the Federal Food, Drug, and 
Cosmetic Act (FFDCA) to provide for national, uniform food safety 
standards and warning requirements. I am cosponsor of this bipartisan 
legislation because it will enhance consumer protection through 
coordinating and harmonizing federal, state, and local food safety 
requirements. Consumers deserve the same high level of protection 
against unsafe food regardless of where they may live.
  While H.R. 4167 would provide for national, uniform food safety 
standards and warning requirements, the legislation, however, does not 
affect state authority in several areas that are traditional local food 
enforcement matters, including: freshness dating, open date labeling, 
grade labeling, state inspection stamp, religious dietary labeling, 
organic or natural designation, returnable bottle labeling, unit 
pricing, and statement of geographic origin. Further, states would be 
exempted from national food safety standards to respond during times 
when substantial concerns are raised about the safety of food. I 
support H.R. 4167 because it provides these important exceptions to 
national standards, which will ensure authority of states in 
traditional local food enforcement matters and allow states to act if 
presented with an imminent food safety crisis.
  Food safety labeling standards are an important public health issue, 
and I support H.R. 4167 because it will provide uniform, national 
standards to ensure greater consumer protection.
  Mr. WILSON of South Carolina. Madam Chairman, the National Uniformity 
for Food Act deserves our full support.
  This act is consistent with our long tradition of cautious 
Congressional oversight of interstate commerce to protect American 
consumers. The act is simple. By requiring states and the FDA to 
provide consumers with a single standard for food safety, this 
important legislation delivers protection to American consumers.
  I strongly believe the National Uniformity for Food Act is the best 
way to apply the safeguards we now have over meat, poultry, drugs, and 
many other products to packaged food. Under the bill, states would 
retain their important functions such as sanitation, inspections and 
enforcement. The act also contains

[[Page H539]]

mechanisms to review state food safety laws and consider them for 
national application.
  This act provides important federal protections, while retaining 
valuable input from states and coordination between state and federal 
food safety experts. I strongly appreciate my good friend Congressman 
Mike Rogers' efforts to ensure that Americans are confident that 
packaged food they find on our store shelves is safe for them and their 
families. I urge all my colleagues to join me in supporting this 
important act.
  In conclusion, God bless our troops and we will never forget 
September 11th.
  Mr. PALLONE. Madam Chairman, I rise in strong opposition to H.R. 
4167, the National Uniformity for Food Act of 2005. I am opposed to 
this legislation for two reasons.
  First, and foremost, this legislation would completely eliminate any 
State or local food safety law that is not identical to requirements 
established by the FDA. Even laws that go beyond the federal 
requirements to protect their citizens would be pre-empted. For 
example, in my home state of New Jersey, a number of labeling 
requirements for milk, restaurant food safety and many other State laws 
would be completely negated, thereby placing the health and well-being 
of our citizens at increased risk. How is that good public policy?
  I also have to oppose this legislation for the way it has completely 
violated the legislative process. This bill has escaped any real 
scrutiny from the Energy and Commerce Committee, which has jurisdiction 
over such food safety matters. No hearings were held, no witnesses were 
called to testify, and no effort was made to determine the actual 
impact this bill will have on the safety of our nation's food supply. 
It is clear that this bill was insufficiently reviewed and I fear that 
Congress is acting far too quickly to enact legislation that will have 
such sweeping affects.
  I believe improving the quality of our nation's food supply is one of 
the most important challenges facing Congress today. A vote for this 
legislation, however, would put consumers at increased risk. I urge my 
colleagues to vote ``no.''
  Mr. UPTON. Madam Chairman, I rise in support of H.R. 4167, the 
National Uniformity for Food Act.
  This is common sense legislation that will benefit both consumers and 
businesses--and particularly small businesses.
  Consumers will benefit from being able to rely on scientifically-
based national food safety and warning standards, just as they now rely 
on national standards for nutrition labeling.
  When we think of the food manufacturing industry, we may not realize 
that small manufacturers account for the bulk of the industry. 
Specifically, nearly 73 percent of food manufacturers have fewer than 
20 employees. These smaller firms are especially burdened by having to 
comply with up to 50 different food safety and warning regimens if they 
are in or wish to enter interstate commerce.
  I know many of us have heard from our governors about important state 
food safety and warning requirements that could be pre-empted by a 
national standard. But it is important to underscore that this bill 
provides for a 180-day period after enactment for states to petition 
the FDA and make their cases for either permitting a state requirement 
to remain in place or to make a state requirement a national standard. 
Further. the state requirements will remain in place until the FDA 
makes a determination on the state's petition.
  Mr. DEAL of Georgia. Madam Chairman, I yield back the balance of my 
time.
  The ACTING CHAIRMAN (Mrs. Drake). All time for general debate has 
expired.
  Under the rule, the Committee rises.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Deal of Georgia) having assumed the chair, Mrs. Drake, Acting Chairman 
of the Committee of the Whole House on the State of the Union, reported 
that that Committee, having had under consideration the bill (H.R. 
4167) to amend the Federal Food, Drug, and Cosmetic Act to provide for 
uniform food safety warning notification requirements, and for other 
purposes, had come to no resolution thereon.

                          ____________________